Chapter 2 Div 5 Flashcards
The plaintiff accidentally called a witness - can the defendant cross examine the witness?
No, provided the witness hasn’t been asked about a matter relevant to a question to be determined in the proceeding: s 40
Can you ask repetitive or rude questions in cross examination?
Section 41 - the court must disallow a question or inform a witness it does not need to be answered if the court is of the opinions that it is:
(a) is misleading or confusing, or
(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or
(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or
(d) has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).
Court can take into account particular things (2).
Not disallowable merely because challenges truthfulness/consistency/accuracy or requires witness to discuss distasteful topic: (3)
Can object (4) but it’s the courts obligation (5) but if court fails not inadmissible (6)
When can you cross examine on a prior inconsistent statement?
(a) The previous statement must be a “prior inconsistent statement” (as defined) (Dictionary).
(b) The witness may be cross-examined on the prior inconsistent statement (whether or not she is given particulars of the statement or is shown the statement) (s 43(1)).
(c) If the witness concedes the inconsistency, s 43 provides no bar to adducing the evidence (Aslett v The Queen). Evidence of the inconsistency may be adduced from the witness or the document, assuming admissibility under Ch 3 of the Act.
(d) If the witness does not concede the inconsistency, evidence of the prior inconsistent statement may not be adduced until the cross-examiner provides the witness with enough of the particulars to identify the prior statement, and draws the witness’s attention to the inconsistency (s 43(2)). Again, admissibility is nevertheless governed by Ch 3.
(e) Mere production of the document to the witness does not require the cross-examiner to tender the document, but may result in an order for production (s 45(5)).
When can a person be asked about a representation alleged to have been made by another person?
See s 44 - if evidence of the rep has been admitted or the court is satisfied it is liketi f be. If document, must be produced to witness.
Document susstible to production under s 45
(a) Section 44 generally prohibits a cross-examiner from questioning a witness about a previous representation (as defined) made by another person, except in accordance with that section.
(b) Where evidence of the previous representation is already in evidence, or where the court is satisfied that such evidence will be admitted, the witness may be questioned about it (s 44(2)).
(c) It is unclear whether the court must be satisfied merely that such evidence is theoretically admissible, or whether it must be satisfied that the evidence will be admitted as a practical matter (R v S).
(d) If evidence of the statement has not been admitted, and if the court is not satisfied that it will be admitted, the cross examiner can only question the witness about the statement if:
i) The document is produced to the witness (or played to the witness in the case of a sound recording),
ii) The witness is asked whether he or she confirms his or her evidence having reviewed the document, and
iii) Neither the cross-examiner nor the witness identify the document or its contents (s 44(3)).
(e) The court’s leave is not required for the s 44(3) procedure (R v S), but court has broad power to control questioning under ss 11 and 26.
(f) Mere production of the document to the witness does not require the cross-examiner to tender the document, but may result in an order for production (s 45(5)).
(g) Waiver possible under s 190.
When can you recall a witness?
Section 46: about a matter raised by evidence adduced ed by another party if the evidence contradicts the witness or the witness could have given evidence about that matter
How do you prove the authenticity of a document? By tendering it?
(a) No, while s 51 abolishes the principles and rules of the common law that relate to proving the contents of documents, the authenticity of a document must still be established on the balance of probabilities (s 142, NAB v Rusu).
(b) To facilitate proof of authenticity, the Act (and other statutes) provide certain presumptions with respect to documents:
i) Sections 146, 147 – Documents produced by machines
ii) Section 152 - Documents older than 20 years old produced from proper custody
iii) Sections 155A, 182 (Cth) - Commonwealth records
iiii) Section 1305, Corporations Act – Corporate books
(c) The court may also draw reasonable inferences from the document itself regarding authenticity, including where relevance turns on authenticity (ss 58, 183).
(d) Section 57 (provisional relevance) allows evidence to be provisionally admitted where a party undertakes to later adduce evidence establishing authenticity.
(e) Section 170-172 provide that evidence of a fact or thing that needs to be proved to establish authenticity may be given by affidavit or statement by an appropriate person.
(f) Section 166-169 creates a request mechanism by which a party can request the production of a document, or the calling of a witness, concerning the authenticity of a document or the contents of a document.
(g) Section 193 explicitly extends the court’s powers regarding discovery to making any orders the court thinks fit to ensure that parties can inspect all documents that are copies, reproductions and duplicates of documents.
(h) Once the authenticity of a document is established, its contents must be proved in accordance with s 48, and admissibility established under Chapter 3.
How do you prove the contents of a document?
Section 48
Can you tender summaries of complex documents?
(a) Under s 50, a party may apply to the court for a direction that the party may adduce the contents of two or more documents by way of summary (s 50(1)).
(b) Court can only make such a direction if satisfied that it would not otherwise be possible to conveniently examine the evidence because of the volume or complexity of the documents (s 50(1)).
(c) Section 192(2) considerations apply to the exercise of the discretion (Stanoevski).
(d) The court can only make such a direction if the party seeking to adduce the evidence has served the summary on each other party, and provided that each party had a reasonable opportunity to examine or copy the documents in question (s 50(2)).
(e) Opinion rule does not apply to summary evidence adduced pursuant to a s 50 direction (s 50(3)).
(f) Separate to s 50, the court has a broad discretion to allow evidence by way of summary under s 29(4).
(g) Moreover, if the batch of documents are records of a business (as defined), a summary (or purported summary) of the document may be tendered as proof of the document (s 48(1)(e)).
(h) If the documents are “not available to the party” (as defined), or if their existence or content is not in issue, a summary of the documents may also be tendered (s 48(4)).
